A Three-Step Approach to
Effective Client/Witness Interviews

by Marlene Pontrelli Maerowitz

When I first started teaching at UCLA Law School, among the classes I was assigned to teach was a class on lawyering skills for first-year students. The purpose of the class was to teach "practical skills" that lawyers use daily, including interviewing clients and witnesses. No problem, I thought. I had been in practice for eight years, and certainly knew how to conduct a client interview. What I learned as a result of teaching the course is that even "veteran" lawyers can improve their techniques for conducting effective and thorough interviews. The techniques I learned, and I hope imparted to my students, offer a sure-fire way to avoid unnecessary surprise when the "facts" we fail to discover come out during the deposition of our client — or worse, at trial.

Whether you practice in a large firm, a small firm, as an in-house lawyer or as a public lawyer, one of the primary tasks all lawyers encounter is interviewing clients and witnesses. Our mission: to obtain all the facts the individual knows about a particular matter so that we can offer effective representation. Our ability to accomplish this mission does not have to be time-consuming, or limited in scope if we follow a simple three-step approach.¹ While the balance of this article speaks in terms of the client, the technique works exactly the same way when interviewing witnesses, or even conducting a deposition.

Step 1: Obtain a chronological overview. While it appears easy enough, it is amazing how tempted we are when a client starts a story to interrupt and start asking questions. Our minds are trained to think in terms of theory, and when facts are being told, we immediately want to start categorizing those facts into neat causes of action, or defenses. Avoid such temptation. You will only succeed in committing yourself too early to a theory, and may very well ignore important facts that could lead to other possible legal theories.

The easiest way to start this area of questioning is to start out by explaining to your clients that you will be asking them to give a chronology of all the events leading up to the incident that has brought them to your office. Explain that it is important for your clients to try to remember as many of the events as possible and that you will try not to interrupt them while they are going through the events. You may also want to explain the benefits of telling these events in the order that the events occurred. Most people find that if they start at the beginning and systematically go through the events, it improves their recall of what occurred, rather than skipping around in the story. In addition, it will give you, the lawyer, an opportunity to get an overview of the entire set of events before making any determinations of possible claims or defenses.

There are also other benefits you will gain by letting the client start the story. First, by asking the client to start, the client chooses the point on the timeline that is in their mind the most important. If the client, in an employment breach case, starts by telling you, "It all started when they removed my personal belongings from the office and put them in storage," you know that this is an area that is important to the story for the client. This is something you may have missed if you had asked the client to start with the time he learned his employment contract was being terminated. However, recognize that the point that the client chooses is almost always an artificial starting point on the chronology timeline.

At UCLA one of the case studies we used involved a will contest by the niece of the decedent, who was the niece’s elderly aunt. The decedent had changed her will days before she died to exclude the niece from the will and to leave her considerable estate to others. When interviewing the niece, the niece always started at the point when the aunt moved in with her and the niece assumed responsibility for her aunt’s care. However, what was important for the students to recognize is that the time line really started years earlier when the aunt became friends with a neighbor, who ultimately was one of the beneficiaries of the revised will. Accordingly, it is important, after the client gives his or her version of the chronology of events, to go back and ask the client what happened prior to the point that the chronology started.

Just as there is an artificial beginning point, there is also an artificial ending point. In the will contest example, the client usually would end the chronology at the point when the aunt died. Yet, again there were often significant events that occurred after the death of the aunt, such as discussion among the relatives at the funeral regarding the aunt’s mental capacity.

The questioning for the chronological overview stage should be very limited. Sometimes all that is needed is for the lawyer to explain that they need a chronological overview, and some clients will launch into a detailed narrative of all the events. Other clients may not be as forthcoming, and it will be necessary to help prod the story along. Again, the important thing is to try to keep the client focused on the story and continually moving through the chronology. A typical way to do this is when the client stops, to simply ask the client "What happened next?" This line of questioning should continue through time until the day the client is sitting in your office. Often, even after the client believes all significant events have been given, there may have been correspondence, telephone calls or other communications that prove to be important.

Step 2: Close all gaps. Now that you have a historical timeline of all the significant events as relayed by the client, you must make sure that there are no gaps in the events. Accordingly, it is important to go through the timeline and close any gaps that might exist. For each two events on the timeline, ask the client to verify whether anything occurred between the two events. For example, assume two events on the timeline are that the client watched as the security guards removed all of his personal belongings from his office, and the president of the company called the client into his office to discuss his termination. To be certain that nothing else that could be important to the case occurred between these two events, ask the client, "Did anything happen between the time you saw the security guards remove your personal belongings, and the time the President called you into his office?" If the client says no, you know that you can move on. However, the client will recall other events. For example, other people may have come by the office and commented on the situation, leading you to discover additional witnesses for the case.

Step 3. Probe events for theory development. This is the stage that most lawyers skip to almost immediately. However, if you wait until you have received all the facts, by going through the timeline stage and gap-filling stage, you will know exactly which events to probe for further details in developing your theory.

The theory development stage consists of two parts. The first part is to take each event that you have determined is significant and probe the event for more details. This first part could more aptly be described as "getting to no." The second part is where the lawyer finally has to work at coming up with specific questions to verify the theory and develop specific evidence.

The first part of theory development works from a specific event on the timeline. In the employment termination example, the lawyer may focus the client’s attention on the removal of the office belongings. Here the lawyer would simply ask, "With respect to the time the security guards were removing the contents of your office, can you tell me a little bit more about that?" The idea here is to let the client explain and fill in the details about what occurred. Of course, if your clients ask for help here, you may need to tell them the type of details you would like. You might say "For example, describe what you saw, what the security officers did, what was said, who was there and any other details you can recall." The goal is to get as many details as possible. When the client has finished, be sure there are no more details by asking, "Is there anything else?" Avoid moving on until you get a "no" answer to your "anything else" question.

Once you have gotten the client to "no," you can now move to specific questions. Thus, in the same example, if you have not learned the answer already you may want to ask questions about whether any of the property was destroyed while the removal was taking place, whether the security guards made any comments during the removal, whether the client asked the security guards to cease the removal, and so forth. However, by this stage, these questions are often unnecessary because the client will have given the specifics through the earlier narration.

This three-step process is simple to use, and invariably produces more thorough responses than the traditional methods of lawyer questioning and client answering. While surprises may still occur when the client suddenly remembers additional facts, these surprises will not occur because we, as lawyers, did not ask the right questions, or because we failed to probe the client’s story in the right areas.

Marlene Maerowitz is an Assistant City Attorney for the City of Tempe.The comments expressed herein are those of the author’s and do not necessarily express the views of the Office of the City Attorney, City of Tempe.

ENDNOTE:

1. The author gratefully acknowledges the training of these interviewing techniques that she received from Professors David Binder and Pam Woods at UCLA. For a more thorough discussion of the techniques discussed in this article, see Binder, Bergman & Price, Lawyers As Counselors, West Publishing.